Bhupinder Kaur Kharana v. Alberto R. Gonzales, Attorney General

487 F.3d 1280, 2007 U.S. App. LEXIS 12358, 2007 WL 1531822

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2007
• Docket: 04-71335
• Status: Published

Opinions

Opinion by Judge D.W. NELSON; Concurrence by Judge WALLACE.

D.W. NELSON, Senior Circuit Judge.

This case concerns the meaning of Immigration and Nationality Act (“INA”) § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i),¹ which defines the term “aggravated felony” to include “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” We must decide whether a defendant who pleads guilty to fraudulently appropriating more than $10,000 but subsequently makes her victims whole has “paid down” the “loss to the victims” below the statutory threshold so that her offense no longer qualifies as an aggravated felony. We answer in the negative and deny the petition for review.

I. Background

In August 2001, Petitioner Bhupinder Kharana (“Petitioner” or “Kharana”), a lawful permanent resident of the United States, was charged in a state court with four counts of obtaining money by false pretenses in violation of California Penal Code § 532. The felony complaint alleged that Petitioner, by “false and fraudulent representation[s] and pretense[s], defraud[ed]” four victims of $11,000, $23,000, $17,000, and $26,250, respectively. Petitioner pled nolo contendere to all four counts. At some point thereafter, Petitioner repaid the stolen money.²

In 2003, the Department of Homeland Security (“DHS”) charged Kharana with removability under INA § 237(a)(2)(A.)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, DHS alleged Kharana had been convicted, after admission to the United States, of an aggravated felony within the meaning of § 101 (a) (43) (M) (i). Arguing that her post-plea payment of restitution reduced the loss to her victims below the $10,000 threshold, Kharana moved to terminate removal proceedings. An Immigration Judge (“IJ”) denied the motion, found Petitioner removable as charged, and ordered her removed to India. The IJ reasoned that, in the context of a conviction obtained by plea, the “loss to the victim or victims” under § 101(a)(43)(M)(i) means the amount of loss to which the defendant pled guilty. The IJ noted that where the amount of loss is not clear from the plea agreement or charging documents, the amount of court-imposed restitution may be a useful indicator of loss. In Kharana’s case, however, the amount of loss was apparent on the face of the felony complaint, and the IJ considered any post-plea restitution to be irrelevant to the inquiry.

Petitioner appealed to the Board of Immigration Appeals (“BIA” or “Board”). In an unpublished, one-member decision, the Board dismissed Kharana’s appeal, explaining that “[rjestitution does not change the nature of the crime or the fact that loss did occur.”³ This timely petition for review followed.

II. Jurisdiction and Standard of Review

Because this case presents a question of law—whether Kharana’s offense qualifies as an aggravated felony— we have jurisdiction under 8 U.S.C. § 1252, as amended by the REAL ID Act. See Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.2006). We review whether Kharana’s conviction constitutes an aggravated felony de novo. Id⁴

III. Analysis

To determine whether Kharana was convicted of an aggravated felony, we follow the two-step approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir.2004). First, we make a categorical comparison of the generic crime—here the “aggravated felony” defined in § 101(a)(43)(M)(i)—and the crime of conviction. Id. If the crime of conviction is broader than the generic crime, we employ a “modified categorical” approach to determine whether “the record ... unequivocally establishes] that the [alien] pleaded guilty to all the elements of the generic offense.” Id. at 896 n. 7 (quotation and citation omitted).

The elements of the relevant generic crime are “(1) the offense ‘involves fraud or deceit,’ and (2) the ‘loss to the victim or victims exceeds $10,000.’ ” Ferreira v. Ashcroft, 390 F.3d 1091, 1096 (9th Cir.2004). Petitioner was convicted of violating California Penal Code § 532, which provides:

Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, or who causes or procures others to report falsely of his or her wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets possession of money or property, or obtains the labor or service of another, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.

Cal.Penal Code § 532(a) (West 2006) (emphases added).

We have no difficulty determining that a conviction under California Penal Code § 532 is categorically a conviction involving fraud or deceit. See, e.g., People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 279 (1954) (intent to defraud is a necessary element of theft by false pretenses). With respect to the “loss to the victim(s)” element, however, the statute of conviction clearly criminalizes a broader range of conduct than the generic offense.

Therefore, the question before this court is whether, pursuant to “a limited examination of documents in the record of conviction,” Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002), we may conclude that Kharana’s conviction involved a loss to her victim or victims in excess of $10,000. The “record of conviction” includes, among other things, the criminal charging document, guilty pleas, and the judgment. Ferreira, 390 F.3d at 1095.

In this case, the state charging document alleged that Kharana caused her victims to suffer more than $10,000 in losses. The losses outstanding at the time of Kharana’s plea were accurately reflected in the felony complaint. This would seem a sufficient ground to conclude that the conviction involved a loss greater than $10,000. However, Kharana contends on appeal that she “paid down” the losses to her victims to $0 and is therefore not removable as charged.

Petitioner asserts that because the INA fails to define “loss to the victim or victims” with any precision, we ought to look to the manner in which losses are calculated for the purpose of determining offense levels under the United States Sentencing Guidelines (“USSG” or “Guidelines”). Under the Guidelines, the offense level for a basic economic crime such as theft by false pretenses may be increased depending on the dollar amount of “loss” occasioned by the crime. U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (2006). Kharana asserts that where a criminal defendant restores stolen money or property prior to sentencing, a court applying the guidelines must credit the restored amount against the loss calculation.

We do not decide whether the approach to calculating loss under the Guidelines should be transported into the removal context. Even if the meaning of loss under the Guidelines was relevant to the “loss to the victim or victims” calculation under the INA, Petitioner would not benefit. Kharana simply misunderstands the Guidelines’ treatment of loss. Under the Guidelines, the “actual loss” occasioned by an economic offense is the “reasonably foreseeable pecuniary harm that resulted from the offense.” U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n. 3(A)(i) (2006). However, the Guidelines do not count amounts stolen by a criminal defendant but then returned to the victim before the offense was detected as losses. U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n. 3(E)(i) (2006). In contrast, a defendant who returns stolen money only after detection does not receive a so-called credit against loss. United States v. Bright, 353 F.3d 1114, 1118 (9th Cir.2004). This is so because “ ‘[Repayments before detection show an untainted intent to reduce ... loss,’ whereas ‘[Repayments after detection may show no more than an effort to reduce accountability.’ ” Id. (quoting United States v. Stoddard, 150 F.3d 1140, 1146 (9th Cir.1998)); see also United States v. Mummert, 34 F.3d 201, 204 (3d Cir.1994) (“A defendant in a fraud case should not be able to reduce the amount of loss for sentencing purposes by offering to make restitution after being caught.”) (cited with approval in United States v. Davoudi, 172 F.3d 1130, 1135 (9th Cir.1999)).

In this case, Kharana repaid the stolen money only after her fraudulent scheme tvas discovered, and indeed only after she had been the subject of a criminal prosecution. Under the USSG, a reduction in the amount of loss on this basis would “distort the magnitude of [her] crime” and would be inappropriate. Bright, 353 F.3d at 1119. Therefore, even if we assumed, without deciding, that the USSG provided guidance as to the proper method of calculating loss, Kharana would not benefit.⁵

The petition for review is DENIED.

1 . Statutory references are to the INA unless otherwise indicated.

2 . The parties dispute whether Kharana returned the money before or after sentencing by the California court and whether she made “restitution” pursuant to a court order or on her own initiative. The administrative record is unclear on both points. What is not in dispute is that, in entering her plea, Kharana admitted to defrauding her victims of over $77,000. Further, there is no question that Petitioner returned the money only after her conduct was detected by law enforcement and made the subject of a criminal prosecution. Under these circumstances, we need not resolve the parties’ factual disputes because the repayments had no effect on the nature of the underlying crime or the fact that a certain level of loss occurred.

3 . Citing Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999), the BIA also suggested that even if Kharana’s crime did not cause any actual loss, it could be considered an aggravated felony under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), which defines as an aggravated felony any "attempt ... to commit an [aggravated felony] offense.” Kharana argues that because she was not charged with removability under § 101(a)(43)(U), the Board violated her due process right to fair notice. However, because Kharana was removable under § 101(a)(43)(M)(i) for causing actual losses in excess of $10,000, it is irrelevant that the BIA suggested an alternative uncharged ground for removal.

Our concurring colleague makes the related but distinct claim that Kharana would be removable even if her crime did not cause any actual loss because “intended loss satisfies section (M)(i)'s loss requirement.” Concurring op. at 1286. Neither the BIA nor any court has so held and this is not the law.

Read in context, this court's statement in Li v. Ashcroft that, "if the record of conviction demonstrates that the jury in Petitioner's case actually found that Petitioner caused, or intended to cause, a loss to the government of more than $10,000, the modified categorical approach will be satisfied,” 389 F.3d 892, 897 (9th Cir.2004), plainly means that where an alien is found removable under both § 101(a)(43)(M)(i) and § 101 (a)(43)(U), an intent to defraud a victim of more than $10,000 satisfies the loss requirement under the latter subsection but not the former. That the Li court did not differentiate between the two subsections in the same paragraph as the quoted language does not imply otherwise. Elsewhere in the opinion, the court was quite clear to contrast § 101 (a)(43)(M)(i) which requires that "the offense must also have resulted in a loss to the victim or victims of more than $10,000,” 389 F.3d at 896, with § 101(a)(43)(U) under which "intended loss can satisfy the [requirement],” id. n. 8. See also Ming Lam Sui v. INS, 250 F.3d 105, 118— 19 (2d Cir.2001) (holding that where an alien has the requisite intent to defraud, but has not taken a substantial step towards completion of the crime, the alien is not removable under the attempt subsection— § 101(a)(43)(U)— and "may [not] be removed pursuant to subsection (M)(i) alone, since the loss to the victims as a result of his actions did not exceed $10,000”).

Indeed, interpreting § 101(a)(43)(M)(i) such that a conviction involving an unsuccessful attempt to obtain more than $10,000 counts as a conviction "in which the loss to the victim or victims exceeds $10,000” flies in the face of the plain meaning of the statute. Further, such an interpretation would render subsection (U) nugatory as it relates to subsection (M)(i) because all attempts to fraudulently obtain more than $10,000 under the former subsection would also qualify as aggravated felonies under the latter subsection. Because of the traditional "deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment,” Penn. Dept. of Public Welfare v. Davenport, 495 U.S. 552, 562, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990) (superseded by statute on other grounds as stated in Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991)), such a construction is impermissible.

4 . The principles of deference to agency interpretations delineated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), are generally applicable when a court reviews the BIA’s construction of the Immigration and Nationality Act. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). However, statutory interpretations announced in unpublished one-member BIA opinions do not qualify for Chevron deference because they do not represent an exercise of congressionally-delegated lawmaking authority. Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.2006). Because Kharana appeals from an unpublished one-member opinion, and there is no binding agency precedent on-point (either in the form of a regulation or a published BIA case), we do not apply Chevron.

5 . Petitioner misreads United States v. Galbraith, 20 F.3d 1054 (10th Cir.1994). That case decidedly does not hold, as Petitioner argues, "that if a defendant makes restitution of all or part of a loss prior to sentencing, the actual loss to [the] victim(s) is reduced under the Federal Sentencing Guidelines.” Galbraith did not involve the payment of restitution at all. Indeed, the case did not even involve a calculation of "actual loss” under the Guidelines. Rather, Galbraith holds that, where there is no actual loss because the "victim” was a creation of law enforcement during a sting operation and could not possibly be harmed, the amount of "intended or probable loss,” used as an alternate measure, is zero. Not only is this case irrelevant to Kharana's petition for review, but this court has expressly disapproved the reasoning and holding in Galbraith and it has no prece-dential value here. United States v. Robinson, 94 F.3d 1325, 1328-29 (9th Cir.1996).

Neither does United States v. Davoudi, 172 F.3d 1130 (9th Cir.1999), provide support for Petitioner. That case merely stands for the proposition that the amount of loss caused in a fraudulent loan case does not include amounts the defrauded lender may recover from assets pledged to secure the loan. Id. at 1135. Recovery by a lender of collateral securing a loan does not constitute restitution. Nor did Kharana fraudulently obtain a loan. Davoudi is not pertinent to this case.